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Lopez v. Berkel

February 6, 2009

JOSE LOPEZ, PLAINTIFF-APPELLANT,
v.
BERKEL, INC., ILLINOIS TOOL WORKS, INC., ITW FOOD EQUIPMENT GROUP, LLC, AVERY BERKEL, INC., H. GIST UNLIMITED TRUCKING, INC., AND THE HOBART CORPORATION, DEFENDANTS-RESPONDENTS, AND ITW FOOD EQUIPMENT GROUP, INC., BERKEL OF NEW YORK, INC., AND ENTERPRISE MANUFACTURING COMPANY AND/OR ENTERPRISE MANUFACTURING COMPANY OF PENNSYLVANIA AND THEIR SUCCESSORS IN INTEREST, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5843-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2009

Before Judges Wefing and Yannotti.

Plaintiff Jose Lopez appeals from an order dated March 14, 2008, which denied plaintiff's motions to reinstate his complaint, for an extension of time for discovery, and to permit plaintiff to be deposed by video teleconference or "in person" in the Dominican Republic. For the reasons that follow, we affirm.

The following facts are relevant to our decision. On November 21, 2005, plaintiff filed a complaint in the Law Division in which he alleged, among other things, that he was seriously injured while working with a meat grinder that was "designed, manufactured, assembled, installed, repaired, modified, maintained, serviced, sold, resold, leased and/or distributed" by defendants. In January 2006, plaintiff's attorney, Raymond E. Murphy, Jr. (Murphy), withdrew from the case and Kenneth A. Berkowitz (Berkowitz) of the Blume, Goldfaden, Berkowitz, Donnelly, Fried & Forte law firm assumed responsibility for representing plaintiff.

On October 11, 2006, the court entered a case management order, which required that the depositions of fact witnesses be completed by February 28, 2007. The October 11, 2006 order required plaintiff to advise all counsel within ten days as to the present location of the meat grinder and its component parts that plaintiff was allegedly using when he was injured. The order additionally required plaintiff to produce his expert reports by April 15, 2007, and set a discovery end date of July 30, 2007.

In April 2007, Berkowitz filed a motion seeking to be relieved as plaintiff's counsel and for an extension of the time for discovery. Defendants did not object to Berkowitz's withdrawal as counsel but filed a cross-motion to dismiss plaintiff's complaint with prejudice because plaintiff had not complied with the court's October 11, 2006 case management order. Defendants asserted that plaintiff had not informed all counsel as to the present location of the meat grinder and its component parts; had not made himself available for a deposition; and failed to produce his expert reports on liability and damages.

The court heard the motions on April 27, 2007. Berkowitz asked the court to permit him to explain the reasons for his withdrawal from the case in an ex parte discussion with the court. Berkowitz said that it would harm plaintiff's case if defendants were to learn of the reasons that he was withdrawing from the case. The judge met with Berkowitz. Defendants thereafter were informed that plaintiff had returned to his home in the Dominican Republic.

The court entered an order on April 30, 2007, denying the motions without prejudice. The court ordered Berkowitz to notify plaintiff of his motion to withdraw as counsel, defendants' motion to dismiss the complaint with prejudice, and plaintiff's right to retain another attorney. The court further ordered plaintiff to retain a new attorney by May 18, 2007, if he intended to continue with his lawsuit.

In May 2007, Murphy returned as plaintiff's counsel, with Gary G. Staab (Staab) acting as co-counsel. At a case management conference conducted by the court on May 25, 2007, defendants renewed their request for plaintiff's deposition. Plaintiff's attorneys said that it would take ninety days to obtain the visa required for plaintiff to appear for his deposition. The court entered an order on May 30, 2007, which addressed outstanding discovery but did not require plaintiff to appear for this deposition.

Another case management conference was held on August 10, 2007. In its case management order entered on August 13, 2007, the court required, among other things, that plaintiff's deposition take place on or before September 21, 2007. On August 23, 2007, counsel for defendant H. Gist Unlimited Trucking, Inc. issued a notice scheduling plaintiff's deposition for September 19, 2007.

By letter dated September 11, 2007, Staab advised defendants' attorneys that it would not be possible for plaintiff "to obtain the appropriate visa to enter the United States on or before September 19, 2007, as that process will take at least several months." Staab said that plaintiff would be produced by video teleconference for his deposition on September 19, 2007. Defendants advised plaintiff's attorneys that they would not depose plaintiff by video teleconference because the court previously had rejected plaintiff's request to conduct the deposition in that manner and had ordered plaintiff to appear in person for his deposition.

On September 18, 2007, plaintiff filed a motion to permit his deposition to be taken by video teleconference. In support of that motion, plaintiff's attorneys stated that, although the court had previously ordered plaintiff to appear in person for his deposition, counsel had "learned that the waiting time for a citizen of the Dominican Republic just to obtain an appointment with the U.S. Consulate in Santo Domingo to apply for a temporary visa to come to the United States is approximately 155 days." ...


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